Hamas atrocities and the International Criminal Court

(October 15, 2023 / JNS)

On the morning of Oct. 7, thousands of bloodthirsty terrorists from the Gaza Strip infiltrated Israel. In the course of the following hours, the terrorists murdered 1,300 people. Men, women, children, the elderly, the disabled and even babies were butchered—some decapitated while others were burned alive. Some were raped. Thousands more were injured. As many as 150 people, including children, were kidnapped by the terrorists and led back into Gaza.

Simultaneously, the Gazan terrorists fired thousands of rockets, missiles and mortars, indiscriminately targeting Israel’s civilian population. There is no doubt whatsoever that multiple atrocities committed by the Gazan terrorists come under the jurisdiction of the International Criminal Court. Genocide, war crimes and crimes against humanity were all committed individually and jointly by both the terrorists who physically participated in the massacres and by the leaders of the terrorist organizations who sent them. So should Israel or private persons be preparing a complaint to the ICC against the terrorists?

As an international institution, the ICC is not a regular court. It was established to deal with the most heinous of crimes, only in situations in which the sovereign countries could not or would not ensure the prosecution of the offenders. As an international institution, the court functions on a purely voluntary basis and only wields jurisdiction when a country joins the court on a permanent basis or for an ad hoc event or period. Simplified, the idea is that each country that joins effectively delegates its own criminal jurisdiction to deal with specified crimes. A common thief, or even a murderer, has nothing to fear from the ICC.

Initially, Israel was a dominant driving force to establish the court. However, once anti-Israel forces managed to kidnap the drafting process for the court’s statute and add into it offenses specifically tailored only for the Jewish state, Israel never joined.

While membership in the court is limited to states (that actually exist), in 2015, the “State of Palestine” decided to join the court. Despite the fact that no “State of Palestine” exists—or ever existed—the court welcomed its new member.

Since then, the Palestinians have done all they can to weaponize the court against Israel, submitting complaint after complaint and report after report. The intensive Palestinian activities bore fruit in 2019 when the prosecutor of the court announced that sufficient evidence had been gathered to open an investigation against Israel.

However, since the prosecutor was unable to point on a map to the “State of Palestine” or delineate the precise borders of the imaginary state—i.e., the area over which the court had jurisdiction—she decided to ask the court’s pre-trial chamber to define the geographical jurisdiction of the court.

Following suit, two judges of the panel (against a dissenting opinion) similarly decided to ignore reality, ignore history and ignore law, to accept the fiction that a “State of Palestine” exists. The judges then proceeded, without any jurisdiction, to set the borders of that imaginary state.

Following that decision, in early 2021, the ICC opened an official investigation against Israel. The investigation focuses on two main headlines: that Israel is responsible for intentionally killing Palestinians; and that the Israeli settlements in eastern Jerusalem, and Judea and Samaria, are illegal.

Both of these directions of investigation are baseless.

The Palestinians Israel is alleged to have killed are either terrorists feigning civilian status, or civilians accidentally or incidentally killed in the course of Israel’s counter-terror operations. As the prosecutor knows fully well, despite the widespread propaganda and medieval blood libels, Israel does not intentionally target civilians.

In the eye of the court, a Jew like myself building a sukkah in my garden in Efrat is just as culpable of a crime as the Nazi guards operating the gas chambers in Treblinka or Auschwitz-Birkenau.

The claim about the illegality of the settlements is more nuanced. According to the ICC prosecutor and court, eastern Jerusalem (including the entire old city), Judea and Samaria (in the prosecution/courts terminology “the West Bank”) are, and have always been, part of the occupied “Palestine,” and the transfer of Israel’s civilian population to the area constitutes a crime. In other words, in the eyes of the ICC, Jews returning to their ancestral homeland, to settle in places like Hebron—the city in which King David started his reign as King of Israel and in which there had been a constant Jewish presence for 3,000 years until the Arabs massacred them in 1929—are nothing short of being a “war crime.” In the eye of the court, a Jew like myself building a sukkah in my garden in Efrat is just as culpable of a crime as the Nazi guards operating the gas chambers in Treblinka or Auschwitz-Birkenau.

The claim also ignores not only facts and history but law as well.

While proceeding with the investigation against Israel, the ICC prosecution is ignoring the crimes of their Palestinian partners with whom they meet regularly. The widespread, institutionalized incitement of the Palestinian Authority, Hamas and other terror organizations to terror, violence and murder is not under investigation. The P.A.’s institutionalized system to pay huge cash rewards to terrorists—for which there is overwhelming evidence and which is even entrenched in P.A. law—is not under investigation. The wholesale murder of Jews by the terrorists from the P.A., Hamas and the other Palestinian terror organizations is not under investigation.

Considering their clearly biased nature, Israel refuses to cooperate with the ICC prosecution and court.

For the court, the Oct. 7 Palestinian massacre of the Jews is like manna from heaven. The crimes committed were so heinous, and in regular circumstances would fit the goals and designation of the court like a glove to a hand.

If Israel or even private citizens were to submit a complaint, the court would be able to feign real interest and even-handedness by opening a parallel investigation. Israel will have to concede that the “State of Palestine” actually exists and that the imaginary state has real borders.

But let there be no misgivings. In the same way as the ICC has ignored, and even whitewashed, calls for genocide, war crimes and crimes against humanity committed by the Palestinian Authority and the other Palestinian terrorists, the investigation against the Palestinians who carried out that massacre last Saturday—on Shabbat and a Jewish holiday—will never amount to anything. Excuses of inability to access evidence, inability to identify the responsible terrorists and investigate them, etc., etc., etc., will flow freely.

In the meantime, instead of chasing the real war criminals, the ICC will use its Israeli-agreed and confirmed jurisdiction to hunt soldiers in the Israel Defense Forces, Israeli leaders and Jews who simply decided to settle in their ancestral homeland.

While the honey trap has now been laid, I would strongly suggest that Israel and its citizens focus solely on Israel meting out justice to the Palestinian terrorists, rather than relying on the fleeting illusion of the ICC taking real steps.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.

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